RAMESHBHAI NANABHAI VAGADIYAversusBALVINDERSINH @ MANSINH HARIJAN

     C/FA/3309/2023                             JUDGMENT DATED: 30/01/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/FIRST APPEAL NO. 3309 of 2023

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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            Approved for Reporting              Yes          No

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                    RAMESHBHAI NANABHAI VAGADIYA
                                Versus
                BALVINDERSINH @ MANSINH HARIJAN & ORS.
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Appearance:
MR VA MANSURI(2880) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
MR TANMAY B KARIA(6833) for the Defendant(s) No. 5
RULE UNSERVED for the Defendant(s) No. 1,2,4
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 30/01/2026
                            ORAL JUDGMENT


1.     This appeal has been preferred by the appellant–claimant
against the judgment and award dated 15.04.2022 passed by the
Motor Accident Claims Tribunal (Main), Mahisagar at Lunawada
in Motor Accident Claim Petition No.2818 of 2017.


2.     Heard learned advocates for the respective parties.


3.     The brief facts of the case are that on 13.11.2008, the
claimant was travelling in S.T. Bus No. GJ-18-V-1028, driven by
opponent No.4 at a moderate speed and with due care and
caution on the correct side of the road. At about 08:00 hours,
while the bus was passing near the outskirts of village Valan on
National Highway-8, opponent No.1 drove Truck No. PB-10-BV-
4521 in a rash and negligent manner and at an excessive speed
and violently dashed against the bus. As a result thereof, the


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claimant sustained serious injuries on various parts of the body
resulting in permanent disability and, therefore, filed the present
claim petition seeking compensation of Rs.8,00,000/- against
the opponents.



4.   The learned advocate for the appellant submitted that the
impugned judgment and award are contrary to the settled
principles of law and the evidence on record and suffer from
material irregularity resulting in miscarriage of justice. It was
contended that the learned Tribunal erred in awarding only
Rs.2,13,000/- against the claim of Rs.8,00,000/- and in
assessing the income of the deceased at Rs.3,000/- per month,
despite evidence showing that he was working as a supervisor
with Sona Builders earning Rs.5,000/- per month. It was further
urged that the learned Tribunal failed to award compensation
towards future loss of income, future prospects and actual loss
of income during the period of treatment. The learned advocate
also submitted that inadequate amounts were awarded towards
loss of marriage prospects, pain, shock and suffering, medical
expenses, attendant charges, transportation and special diet,
and that no interest was granted for the period between
19.07.2021 and 24.12.2021 and only 7.5% interest was awarded
thereafter. It was therefore urged that the impugned award
deserves to be modified and enhanced.


5.     On the other hand, the learned advocate appearing for
respondent No.3 strongly opposed the appeal and submitted that
the learned Tribunal has rightly awarded just and proper
compensation in view of the evidence available on record. It was


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submitted that the claimant did not sustain any permanent
disability and that the accident had occurred in the year 2008;
in the absence of proof of disability, much less functional
disability, the learned Tribunal committed no error in awarding
the compensation. It was further submitted that the Tribunal
had duly considered the actual loss of income suffered by the
claimant during the period of treatment, as well as the amounts
awarded towards pain, shock and suffering, loss of amenities
and medical expenses, and that the claimant failed to establish
any correlation between the accident and the alleged injuries.
Therefore, it was urged that this Court may not interfere with the
award passed by the learned Tribunal. It was further submitted
that the impugned judgment and award was passed after
considering the entire material on record and, hence, no
interference is called for and the present appeal deserves to be
dismissed.



6.     Having heard the learned advocates for the respective
parties and upon perusal of the record, it appears that the
involvement of the vehicle and liability are not in dispute and
that the appeal has been filed only on the ground of quantum;
therefore, the appeal is required to be decided within a narrow
compass.


7.     The deposition of the claimant is at Exhibit 38, the
deposition of the doctor is at Exhibit 61, the complaint is at
Exhibit 41, the panchnama is at Exhibit 42, copies of the
discharge summaries of K.P. Sanghvi Hospital are at Exhibits
46, 48 and 49, the disability certificate is at Exhibit 62 and the


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medical bills are at Exhibits 65 to 68.


8.      So far as the issue of quantum is concerned, according to
the claimant, he was working as a Supervisor and was earning
Rs.5,000/-             per   month   by    way       of   salary.    However,          no
documentary evidence in support of such income has been
produced. The alleged accident took place in the year 2008 and,
considering the prevailing minimum wages, the learned Tribunal
assessed his income at Rs.3,000/- per month in the absence of
any cogent material. At the relevant time, the minimum wages
were around Rs.2,800/- per month and, therefore, the Tribunal
rightly assessed the income at Rs.3,000/- per month.


9.      While dealing with the issue of functional disability, the
learned Tribunal considered the case of the claimant that he had
sustained a pelvic fracture in the alleged incident and thereafter
suffered from erectile dysfunction and urinary leakage, due to
which he remained under constant depression and was unable
to work, thereby claiming permanent disability. It was noted that
the claimant had undergone urethroplasty surgery at Surat in
the year 2009, though the accident had occurred in 2008, and
that after discharge he was again admitted for further treatment.
From the medical papers, however, it appears                                that the
subsequent admission was in connection with the earlier injury.


10.     It further appears that though the claim petition was filed
in the year 2008, the claimant tendered his evidence before the
learned Tribunal only on 27.12.2021 and, till then, no disability
certificate or expert medical opinion had been produced on


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record. This fact was admitted by the claimant in his deposition,
wherein he stated that he had not produced any medical
certificate, treatment bills or disability certificate, nor had he
examined any expert to prove disability.


11.     Subsequently, in the year 2022, the claimant examined Dr.
Nagesh Kamat at Exhibit 61 to prove disability. On perusal of his
evidence, it emerges that the disability certificate was issued on
30.12.2021 in relation to the accident of the year 2008. The said
doctor had not treated the claimant and, after a lapse of about
thirteen years, issued the certificate on the basis of a clinical
examination alone. The claimant had narrated a history of
erectile dysfunction and, on the basis of such history, the doctor
issued the certificate at Exhibit 62 assessing disability at 30%.
He further opined that the claimant would face psychological
problems and depression and that such condition could affect
his prospects of marriage.


12.     In cross-examination, however, the said witness admitted
that erectile dysfunction may also occur due to high blood
pressure, diabetes, epilepsy or other ailments and that he had
not referred the claimant to any physician. He further admitted
that leukemia or diabetes may have adverse effects and that no
pathological tests were conducted. He also stated that he could
not say whether the claimant had suffered any injury to the
private parts due to some other cause, nor could he explain how
such an injury could have occurred. He further admitted that in
rare cases erectile dysfunction may be congenital or may arise
due to pesticide exposure and that he had not mentioned the


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size of the testicles in the certificate. He also admitted that no
fracture was detected and that the deformity mentioned in the
certificate was not correlated with functional disability.


13.     In view of the aforesaid evidence, the learned Tribunal
concluded that the claimant had failed to prove any functional
disability and, therefore, did not award any amount towards
future loss of income. It is needless to state that physical
disability and functional disability are distinct concepts.


14.     It is pertinent to note that in injury cases while awarding
just compensation the learned Tribunal has to consider the
functional disability and effect of disablement qua in relation to
avocation and profession of the claimant. The physical disability
and functional disability are all together different and the
learned Tribunal has to ascertain the functional disability and
Doctor has nothing to do with the functional disability. In this
regard reference is required to be made from the judgment of the
Hon’ble Supreme Court in case of Raj Kumar Vs. Ajay Kumar
and Anr,reported in (2011) 1 SCC 343, in paragraphs 8, 10
and 11 reads as under:

        “8. Disability refers to any restriction or lack of ability
        toperform an activity in the manner considered normal for a
        human-being. Permanent disability refers to the residuary
        incapacity or loss of use of some part of the body, found
        existing at the end of the period of treatment and
        recuperation, after achieving the maximum bodily
        improvement or recovery which is likely to remain for the
        remainder life of the injured. Temporary disability refers to
        the incapacity or loss of use of some part of the body on
        account of the injury, which will cease to exist at the end of
        the period of treatment and recuperation. Permanent



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  disability can be either partial or total. Partial permanent
  disability refers to a person's inability to perform all the
  duties and bodily functions that he could perform before the
  accident, though he is able to perform some of them and is
  still able to engage in some gainful activity. Total permanent
  disability refers to a person's inability to perform any
  avocation or employment related activities as a result of the
  accident. The permanent disabilities that may arise from
  motor accidents injuries, are of a much wider range when
  compared to the physical disabilities which are enumerated
  in the Persons with Disabilities (Equal Opportunities,
  Protection of Rights and Full Participation) Act, 1995
  (`Disabilities Act' for short). But if any of the disabilities
  enumerated in section 2(i) of the Disabilities Act are the
  result of injuries sustained in a motor accident, they can be
  permanent disabilities for the purpose of claiming
  compensation.

  9. XXXXXXXXXXXXXXXXXXX.

  10. Where the claimant suffers a permanent disability as a
  result of injuries, the assessment of compensation under the
  head of loss of future earnings, would depend upon the
  effect and impact of such permanent disability on his
  earning capacity. The Tribunal should not mechanically
  apply the percentage of permanent disability as
  thepercentage of economic loss or loss of earning capacity.
  In most of the cases, the percentage of economic loss, that
  is, percentage of loss of earning capacity, arising from a
  permanent disability will be different from the percentage of
  permanent disability. Some Tribunals wrongly assume that
  in all cases, a particular extent (percentage) of permanent
  disability would result in a corresponding loss of earning
  capacity, and consequently, if the evidence produced show
  45% as the permanent disability, will hold that there is 45%
  loss of future earning capacity. In most of the cases,
  equating the extent (percentage) of loss of earning capacity
  to the extent (percentage) of permanent disability will result
  in award of either too low or too high a compensation.

  11. What requires to be assessed by the Tribunal is the
  effect of the permanently disability on the earning capacity
  of the injured; and after assessing the loss of earning
  capacity in terms of a percentage of the income, it has to be
  quantified in terns of money, to arrive at the future loss of
  earnings (by applying the standard multiplier method used



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        to determine loss of dependency). We may however note
        that in some cases, on appreciation of evidence and
        assessment, the Tribunal may find that percentage of loss
        of earning capacity as a result of the permanent disability,
        is approximately the same as the percentage of permanent
        disability in which case, of course, the Tribunal will adopt
        the said percentage for determination of compensation (see
        for example, the decisions of this court in Arvind Kumar
        Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE
        298 and Yadava Kumar v. D.M., National Insurance Co. Ltd.
        - 2010 (8) SCALE 567).”

15. Thus while assessing permanent disablement of the claimant
the learned Tribunal ought to have considered on the actual
earning capacity in following three steps as under :

        “I. The Tribunal has to ascertain what activities the claimant
        could carry on in spite of the permanent disability and hat
        he could not do as a result of the permanent disability.
        II. The Tribunal has to ascertain the claimant’s avocation,
        profession and nature of work before the accident.
        III. The Tribunal has to find out whether the claimant is
        totally disabled from earning any kind of livelihood, or
        whether in spite of the permanent disability, the claimant
        could still effectively carry on the activities and functions,
        which he was earlier carrying on or whether he was
        prevented or restricted from discharging his previous
        activities and functions, but could carry on some other or
        lesser scale of activities and functions so that he continues
        to earn or can continue to earn his livelihood.”

16.     In view of above it is the duty of the Court and the
Tribunals to ascertain the functional disability of claimant in all
injury cases filed under the MV Act for getting compensation. At
the same time in Raj Kumar (supra) the Hon’ble Supreme Court
has taken the note and further observed about duty and role of
learned Tribunal in paragraphs 16 to 18, read as under :-

        “16. The Tribunal should not be a silent spectator when
        medical evidence is tendered in regard to the injuries and
        their effect, in particular the extent of permanent disability.


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  Sections 168 and 169 of the Act make it evident that the
  Tribunal does not function as a neutral umpire as n a civil
  suit, but as an active explorer and seeker of truth who is
  required to `hold an enquiry into the claim' for determining
  the `just compensation'. The Tribunal should therefore take
  an active role to ascertain the true and correct position so
  that it can assess the `just compensation'. While dealing
  with personal injury cases, the Tribunal should preferably
  equip itself with a Medical Dictionary and a Handbook for
  evaluation of permanent physical impairment (for example
  the Manual for Evaluation of Permanent Physical
  Impairment for
  Orthopedic Surgeons, prepared by American Academy of
  Orthopedic Surgeons or its Indian equivalent or other
  authorized texts) for understanding the medical evidence
  and assessing the physical and functional disability. The
  Tribunal may also keep in view the first schedule to the
  Workmen's Compensation Act, 1923 which gives some
  indication about the extent of permanent disability in
  different types of injuries, in the case of workmen.

  17. If a Doctor giving evidence uses technical medical terms,
  the Tribunal should instruct him to state in addition, in
  simple non-medical terms, the nature and the effect of the
  injury. If a doctor gives evidence about the percentage of
  permanent disability, the Tribunal has to seek clarification
  as to whether such percentage of disability is the functional
  disability with reference to the whole body or whether it is
  only with reference to a limb. If the percentage of permanent
  disability is stated with reference to a limb, the Tribunal will
  have to seek the doctor's opinion as to whether it is possible
  to deduce the corresponding functional permanent disability
  with reference to the whole body and, if so, the percentage.

  18. The Tribunal should also act with caution, if it proposed
  to accept the expert evidence of doctors who did not treat
  the injured but who give `ready to use' disability
  certificates, without proper medical assessment. There are
  several instances of unscrupulous doctors who without
  treating the injured, readily giving liberal disability
  certificates to help the claimants. But where the disability
  certificates are given by duly constituted Medical Boards,
  they may be accepted subject to evidence regarding the
  genuineness of such certificates. The Tribunal may
  invariably make it a point to require the evidence of the
  Doctor who treated the injured or who assessed the



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        permanent disability. Mere production of a disability
        certificate or Discharge Certificate will not be proof of the
        extent of disability stated therein unless the Doctor who
        treated the claimant or who medically examined and
        assessed the extent of disability of claimant, is tendered for
        cross- examination with reference to the certificate. If the
        Tribunal is not satisfied with the medical evidence produced
        by the claimant, it can constitute a Medical Board (from a
        panel maintained by it in consultation with reputed local
        Hospitals/Medical Colleges) and refer the claimant to such
        Medical Board for assessment of the disability.”



17.     As there was no correlation established between the injury
and any disability adversely affecting the income and earning
capacity of the claimant, the learned Tribunal rightly held that
the claimant was not entitled to any compensation towards
future loss of income and accordingly awarded only actual loss
of income for six months, amounting to Rs.18,000/-.


18.     So far as the grievance regarding urinary leakage is
concerned, upon perusal of the record it appears that the said
problem had subsided after the second operation. However,
considering the pain, shock and suffering in relation to erectile
dysfunction, the Tribunal awarded a lump sum compensation of
Rs.50,000/-. Having regard to the age of the claimant at the time
of the accident, an amount of Rs.1,00,000/- is required to be
awarded; accordingly, the claimant is entitled to Rs.1,00,000/-
towards pain, shock and suffering. Further, considering the
same injury, an amount of Rs.1,00,000/- is required to be
awarded towards loss of marriage prospects; accordingly, the
claimant is entitled to Rs.1,00,000/- under the said head.


19.     For the reasons recorded above, the present appeal is partly


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  allowed. The impugned judgment and award passed by the
  learned Tribunal is modified and the claimant is entitle to get
  additional amount of Rs.1,50,000/- towards pain, shock,
  suffering and towards loss of marriage prospects. The original
  opponent No.1 to 3 jointly and severally shall deposit the
  additional amount of Rs.1,50,000/-along with interest at the
  rate of 7% per annum before the Tribunal within a period of four
  weeks from the date of receipt of this order. The record and
  proceedings shall be remitted to the concerned Tribunal
  forthwith.


  20.      The learned Tribunal is directed to recover or deduct the
  deficit court fees on enhanced amount and thereafter disburse
  the amount accordingly.


  21.      Award to be drawn accordingly.


                                                                     (HASMUKH D. SUTHAR,J)
  ALI




Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: ISTAYAK ALI(HC01093), PRIVATE SECRETARY, at High Court of Gujarat on 02/02/2026 11:22:00




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